A patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. The exclusive right is to manufacture the new article invented or manufacture an article according to the invented process for a limited period. During the term of the patent the owner of the patent, i.e.the patentee can prevent any other person from using the patented invention. After the expiry of the duration of the patent anybody can make use of the invention. The invention then becomes part of public domain.
A patent is a creation of statute and is therefore territorial in extent. Thus a patent granted in one country cannot be enforced in another country unless the invention concerned is patented in that country also.
My Patents: One for the product, i.e. An improved laser marking and engraving machine and other for the process, i.e. A Process of manufacturing engraved design article on metal and non metal, in the year 1998 and the validity of these patents are for twenty years from the date of registration i.e. validity up to year 2018.
Rights of Patentee : (a) where the subject matter of a patent is a product, to prevent third parties not having the owner’s consent from the acts of: making, using, offering for sale, selling or importing for these purposes that product;
(b) where the subject matter of the patent is a process, to prevent third parties not having the owner’s consent from the act of using the process, and from the acts of: using, offering for sale, selling or importing for these purposes at least the product obtained directly by that process.
When is patent Infringed ? When an unauthorized User Copies or Imitates The Registered Patent they are infringing patent rights of patentee.
Who is an infringer of my patent rights? Apart from the person who actually manufactures the infringing article or uses the patented process, others who are indirectly connected with the manufacture or sale of article may also be involved in the infringement
Mode of infringement of my patent rights,
a) Sale of parts of patented machine. If a person sells the patented machine in parts which are so manufactured as to be adapted to be put together, he sells in substance the whole of the patented machine.
b) Sale of articles made by patented process. Where the patent is not for the article manufactured, but for the mode by which the article described is brought into existence the sale by the defendants of articles manufactured by the plaintiffs process is an infringement whether made within the jurisdiction or elsewhere. Hence a person who buys or sells articles knowing them to be made by machine which is de facto, though unknown to him, itself an infringement, he is infringing the patent. If the law were otherwise, then when a man has patented an invention, another might by merely manufacturing abroad and selling within the jurisdiction articles made by patented process, wholly deprived the patentee of the benefit of invention.
Import of articles made by patented process. It is an infringement of patent if goods made using the patented process are imported from abroad.
Infringement of process. If a product was produced as a direct result using a process substantially the whole of which was the subject of a patent, the sale of that product constitutes infringement.
c) Sale of articles made by patented machine. What every person is prohibited from doing is the making using or vending the prohibited articles and that, of course, includes in the case of machinery the product of the machinery which is the subject of the patent it is that which is produced by the patent. Thus, where the defendant sold product manufactured by the patented machine, it was held that they had infringed the patent rights.
d) Use of patented process in course of manufacture of other goods.
e) Purchase for trade. Where a person purchases the infringing articles for the purpose of his trade the inference, in the absence of evidence to the contrary, is that he bought them with the intention of using them in trade as and when required, and for any purpose for which they were capable of being used.
f) Intention to use. Where a ship was fitted up exclusively with pumps which were an infringement of a letters patent, an injunction was granted against the master of the ship on the ground that he being in command was intending to use the patented invention.
g) Possession. Where a person possessed the infringing article but did not use it during the term of patent, it was held that he did not infringe. But possession for trade purpose is infringement of patent. Possession without actual use of infringing articles is a sufficient ground for injunction to restrain actual use. Possession with intention of using the articles for trade purpose and for the securing of profit amounts to an infringement, whether the dealing which you are proposing to carry is a dealing with a customer in this country or with an export customer.
h) Purchase of infringing article. Where a person buys an article manufactured by an infringer, he gets possession of that article, and thereby is able to use it for the purposes for which it was intended that the patentee alone should use it during the term of patent; it makes no difference whether he has manufactured it himself or whether he has purchased it from person as ready –made article.
Enforcement of Intellectual Property (Patents)
Civil, criminal and border provisions exist in various laws for dealing with counterfeiting and piracy in India. The Government Enforcement Agencies are Customs, Excise and Police. The Offence are cognizable and non bailable
Government of India for border protection of IPR have formed rules known as Intellectual Property rights Enforcement Rules 2007 which is been followed by customs (Exports & Imports) and Excise department.
The Department of IPP of government of India has set up an Inter-ministerial Committee to coordinate IP enforcement issues.
In the case of infringement a court may grant an injunction or either damages or an account of profits
The court may also order that the goods which are found to be infringing and materials and implements, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation.